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Social Security and the 10-Year Marriage Rule

Social Security retirement benefits may not be the first thing on your clients’ minds when they are getting divorced, especially if they are younger. The right to Social Security benefits is a federal entitlement not affected by state law, and rarely discussed much during divorce. But one critical timing mistake could cost your client a bundle down the road.

Social Security benefits after divorce
When married couples retire, a lower-earning spouse can elect to claim Social Security retirement benefits based on the record of the higher-earning spouse. The lower-earning spouse is usually, but not always, the wife.

Your client’s right to claim Social Security retirement benefits based on his or her spouse’s record continues after divorce — but only certain conditions are met. Most of these conditions are out of the lawyer’s control: the ex-spouse claiming the benefits has to be at least 62 years old and can’t be married at the time and the divorce has to have been final for two years, among other requirements. Whether these requirements will be met cannot always be known. The one requirement that is somewhat in your control is that the parties must have been legally married for 10 years for this benefit to even be a possibility.

Any time you are advising a client with a marriage that is approaching the 10-year mark, you should discuss the possibility of delaying entry of the decree of dissolution until after the parties’ tenth anniversary. Preserving this right costs the higher-earning spouse nothing and could benefit the lower wage earner substantially in the future.